I/A Court H.R., Case of Norín Catrimán et al. (Leaders, Members and Activist of the Mapuche Indigenous People) v. Chile. Merits, Reparations and Costs. Judgment of May 29, 2014. Series C No. 279.

Non official brief

 This summary is also published in the website of the Council of Europe in the following link: https://www.venice.coe.int/files/Bulletin/B2015-1-e.pdf

  

Headnotes:

 

When defining offenses of a terrorist nature, the principle of legality requires that a necessary distinction be made between such offenses and ordinary offenses, so that every individual and also the criminal judge have sufficient legal elements to know whether an action is penalised under one or the other offence.

 

The special intent or purpose of instilling fear in the general population is a fundamental element to distinguish conduct of a terrorist nature from conduct that is not, and without which the conduct would not meet the definition.

 

The Court indicates the importance that the special criminal offense of terrorism is not used in the investigation, prosecution and punishment of criminal offenses when the wrongful act could be investigated and tried as an ordinary offense because it is a less serious conduct.

 

The ethnic origin of an individual is a category protected by the American Convention. Hence, the American Convention prohibits any discriminatory norm, act or practice based on an individual’s ethnic origin. Consequently, no norm, decision or practice of domestic law, applied by either State authorities or by private individuals, may reduce or restrict in any way the rights of an individual based on his or her ethnic origin. This is equally applicable to the prohibition, under Article 24 ACHR, of unequal treatment based on ethnic origin under domestic law or in its application.

 

A difference of treatment is discriminatory when is has no objective and reasonable justification; in other words, when it does not seek a legitimate purpose and when the means used are disproportionate to the purpose sought.

 

States are obliged to take affirmative action in order to reverse or change discriminatory situations in their societies that prejudice a specific group of persons. This involves a special obligation of protection that the State must exercise with regard to the actions and practices of third parties, who, with its tolerance or acquiescence, create, maintain or encourage discriminatory situations.

 

The Court takes into account that ethnic group refers to communities of individuals who share, inter alia, characteristics of a socio-cultural nature, such as cultural, linguistic, spiritual affinities and historical and traditional origins. Indigenous Peoples fall within this category and the Court has recognised that they have specific characteristics that constitute their cultural identity, such as their customary law, their economic and social characteristics, and their values, practices and customs.

 

When adopting measures that seek to protect the persons subject to their jurisdiction against acts of terrorism, States have the obligation to ensure that the criminal justice system and procedural guarantees abide by the principle of non-discrimination. States must ensure that the objectives and effects of the measures taken in the criminal prosecution of terrorist actions are not discriminatory and do not allow individuals to be subjected to ethnic stereotypes or characterisations.

 

The measure of preserving witness anonymity is subject to judicial control, based on the principles of necessity and proportionality, taking into account that this is an exceptional measure and verifying the existence of a situation of risk for the witness. When making this assessment, the court must bear in mind the impact that the measures have on the right of defence of the accused.

 

It is important for the State to ensure the effects of the use of the measure of preserving the anonymity of witnesses by counterbalancing measures, such as:

 

a. the judicial authority must be aware of the identity of the witness and be able to observe his demeanour under questioning in order to form his or her own impression of the reliability of the witness and of the testimony, and

b. the defence must be granted every opportunity to examine the witness directly at some stage of the proceedings on matters that are not related to his identity or actual residence; this is so that the defence may assess the demeanour of the witness while under cross-examination in order to be able to dispute his or her version or, at least, raise doubts about the reliability of the testimony.

 

Even when counterbalancing procedures have been adopted and appear to be sufficient, a conviction should not be based, either solely or to a decisive extent, on anonymous statements. Otherwise, it would be possible to convict the accused by the disproportionate use of a probative measure that was obtained while impairing his or her right of defence. Since this is evidence obtained in conditions in which the rights of the accused have been limited, the testimony of anonymous witnesses must be used with extreme caution, and must be assessed together with the body of evidence, the observations and objections of the defence, and the rules of sound judgment. The decision as to whether this type of evidence has weighed decisively in the judgment convicting the accused will depend on the existence of other types of supportive evidence so that, the stronger the corroborative evidence, the less likely that the testimony of the anonymous witness will be treated as decisive evidence.

 

When deciding the objections submitted by the appellant, the higher court hearing the appeal must ensure that the guilty verdict provides clear, complete and logical grounds in which, in addition to describing the content of the evidence, sets out its assessment thereof and indicates the reasons why it considered – or did not consider – it reliable and appropriate to prove the elements of criminal responsibility and, therefore, to overcome the presumption of innocence.

 

When interpreting and applying their domestic laws, States must take into consideration the inherent characteristics that differentiate members of the indigenous peoples from the general population and that constitute their cultural identity. The prolonged duration of pre-trial detention may have different effects on members of indigenous peoples owing to their economic, social and cultural characteristics and, in the case of community leaders, may also have negative consequences on the values, practices and customs of the community or communities in which they exercise their leadership.

 

Visits by family members to individuals deprived of liberty are an essential element of the right to the protection of the family both of the person deprived of liberty and for the family members, not only because they are an opportunity for contact with the outside world, but also because the support of family members for those deprived of liberty while they serve their sentence is fundamental in many aspects, ranging from affective and emotional support to financial support.

 

States, as guarantors of the rights of individuals in their custody, have the obligation to adopt the most appropriate measures to facilitate and to implement contact between the individuals deprived of liberty and their families.

 

One of the difficulties in keeping up relationships between those deprived of liberty and their family members may be their confinement in prisons that are very far from their homes, or of difficult access because the geographical conditions and communication routes make it very expensive and complicated for members of the family to make frequent visits, which could result in a violation of both the right to protection of the family and other rights, such as the right to personal integrity, depending on the particularities of each case. Therefore, the State must facilitate the transfer of prisoners to prisons closer to the places where their families live. In the case of Indigenous persons deprived of liberty, the adoption of this measure is especially important given the significance of the ties that these individuals have with their place of origin or their community.

 

Summary:

 

I. The case regards eight persons, all Chilean nationals, seven of whom were traditional authorities or members of the Mapuche indigenous people, and the latter of whom was an activist working to defend the rights of this community. Criminal proceedings were held against them for events that occurred in 2001 and 2002, resulting in their conviction as perpetrators of offenses that were categorised as terrorism in application of Law 18.314, known as the «Counter-terrorism Act.» None of the acts for which they were tried (arson of a wooded property and of a private company’s truck, as well as threat of arson) affected anyone’s physical integrity or life. This criminal law was inconsistent with the principle of legality, and the victims of the case were subjected to a series of irregularities that affected due process, including unjustified and discriminatory consideration of their ethnic origin.

 

On 29 May 2014, the Inter American Commission of Human Rights submitted the case, alleging violations to Articles 1.1, 2, 8.1, 8.2, 8.2.f, 8.2.h, 9, 13, 23 and 24 ACHR.

 

II. On the merits, the Court concluded that the application of a presumption regarding the subjective element of terrorist intent with regard to the eight victims violated the principle of legality and the right to the presumption of innocence, established in Articles 9 and 8.2 ACHR, in relation to the obligation to respect and ensure rights, established in Articles 1.1 and 1.2 ACHR.

 

Furthermore, the Court determined that the allegations of a violation of the right to an impartial judge or court, established in Article 8.1 ACHR, are closely linked to the presumption of the terrorist intent «to instill […] fear in the general population» (a subjective element of the definition) that, as the Court had already declared, violates the principle of legality and the guarantee of presumption of innocence. Thus, the alleged violation of Article 8.1 ACHR was considered to be subsumed in the previously declared violation of Articles 9 and 8.2 ACHR.

 

Additionally, the Court held that the mere use of arguments which reveal stereotypes and biases as grounds for the judgments constituted a violation of the principle of equality and non-discrimination and the right to equal protection of the law, recognised in Article 24 ACHR, in relation to Article 1.1 ACHR.

 

The Court also concluded that, when delivering a guilty verdict, a decisive significance was accorded to the testimony of an anonymous witness, which constitutes a violation of the right of the defence to examine witnesses established in Article 8.2.f ACHR, in relation to Article 1.1 ACHR, to the detriment of two of the victims.

 

The Court also indicated that the State violated the right to appeal the guilty verdict of two of the victims because the appellate court that received their request for annulment merely described the arguments of the court below, without providing a review of the latter´s factual and legal decisions.

 

The Court also established that the State violated the rights to personal liberty, not to be subject to arbitrary arrest, and not to suffer pre-trial detention in conditions that were not adapted to international standards, recognised in Articles 7.1, 7.3 and 7.5 ACHR, and the right to presumption of innocence, established in Article 8.2 ACHR, all in relation to Article 1.1 ACHR. According to the Court, denying the release of the accused because they would be a danger to society has an open-ended meaning that can permit objectives that are not in accordance with the Convention. Since criminal responsibility had not been established legally, the victims had the right to be presumed innocent under Article 8.2 ACHR. The State had the obligation not to restrict their liberty more than strictly necessary, because pre-trial detention is a precautionary rather than a punitive measure.

 

The Court also held that Chile violated the right to freedom of thought and expression protected in Article 13.1 ACHR, in relation to Article 1.1 ACHR, to the detriment of three of the victims who had been convicted of prison sentences varying between 5 and 10 years, because it applied an ancillary penalty which disqualified them, for 15 years, «from […] exploiting a social communication medium or from being a director or administrator of one, or from performing functions related to the emission and diffusion of opinions and information.» According to the Court, the imposition of the ancillary penalty could limit their right to freedom of thought and expression in the exercise of their functions as leaders or representatives of their communities.

 

This has a negative impact on the social dimension of the right to freedom of thought and expression, which, as the Court has established, involves the right of everyone to receive the opinions, reports, and news of third parties. In addition, it could have produced an intimidating and inhibiting effect on the exercise of freedom of expression derived from the specific effects of the undue application of the Counter-terrorism Act to members of the Mapuche indigenous people.

 

The Court further found that the State violated the political rights protected by Article 23 ACHR, in relation to Article 1.1 ACHR, to the detriment of the victims, given that, the imposition of ancillary penalties that affect various political rights, such as the right to vote, the right to participate in the direction and administration of public matters, and access to public functions, either indefinitely of for a prolonged period of time (15 years), was contrary to the principle of proportionality of the penalties and seriously undermined political rights. It also emphasised that, owing to three of the victims’ status as Mapuche leaders, the nature of their functions and their social position, not only were their individual rights affected, but also those of the members of the Mapuche indigenous People they represented.

 

Finally, the Court held that confining a person in a prison that was very far from his family home and arbitrarily denying repeated requests for his transfer to a prison that was nearer, to which the Prison Service had agreed, violated the right to protection of the family established in Article 17.1 ACHR, in relation to the obligation to ensure rights established in Article 1.1 of this treaty.

 

Accordingly, the Court ordered, inter alia, that the State:

 

  1. adopt all the administrative, judicial or any other type of measure necessary to nullify all the effects of the criminal judgments convicting the victims;
  2. provide the necessary and appropriate medical and psychological or psychiatric treatment to the victims that request it, immediately and free of charge;
  3. award scholarships in Chilean public establishments to the children of the eight victims; and
  4. regulate, clearly and rigorously, the procedural measure of witness protection consisting in anonymity in order to avoid violations such as those declared in this judgment, ensuring that this is an exceptional measure, subject to judicial control based on the principles of necessity and proportionality, and that this type of evidence is not used decisively to justify a guilty verdict.